Citation Nr: 0310592
Decision Date: 06/02/03 Archive Date: 06/10/03
DOCKET NO. 98-17 957A ) DATE
)
)
On appeal from the
Department of Veterans Affairs Regional Office in New York,
New York
THE ISSUE
Entitlement to service connection for bipolar disorder,
(claimed as depression, anxiety, and post-traumatic stress
disorder (PTSD)).
REPRESENTATION
Appellant represented by: New York State Division of
Veterans' Affairs
WITNESS AT HEARING ON APPEAL
Appellant
ATTORNEY FOR THE BOARD
E. Ward, Associate Counsel
INTRODUCTION
The veteran had active service from July 1974 to October
1975.
This matter comes before the Board of Veterans' Appeals
(Board), on appeal from June 1998 and later RO rating
decisions by the Department of Veterans Affairs (VA) Regional
Office (RO) in New York, New York that denied the veteran's
claim of entitlement to service connection for bipolar
disorder.
REMAND
During the course of this appeal, the regulation authorizing
the Board to develop evidence or to cure a procedural defect
was invalidated. See Disabled American Veterans v. Secretary
of Veterans Affairs, Nos. 02-7304, -7305, -7316 (Fed. Cir.
May 1, 2003).
In this regard, the record reflects that by a letter dated
January 28, 2003, the Board attempted to comply with the
notification requirements of 38 U.S.C.A. § 5103(a) (West
2002) and 38 C.F.R. § 3.159 (2002), by informing the veteran
of the evidence and information needed to substantiate his
claim, the evidence and information that he should submit and
the assistance that VA would provide in obtaining evidence
and information on his behalf.
In this letter, the Board also informed the veteran that he
would be afforded a period of 30 days in which to submit the
additional evidence and information and that his claim would
be decided on the current record if the requested evidence
and information were not received within the days allotted.
The 30 day limit for the submission of additional evidence
and information is contrary to the provisions of 38 U.S.C.A.
§ 5103(b) (West 2002), which provide that a claimant must
submit requested evidence and information within one year of
the date of the letter notifying the claimant of the required
evidence and information. See Disabled American Veterans v.
Secretary of Veterans Affairs, Nos. 02-7304, -7305, -7316
(Fed. Cir. May 1, 2003).
Thus, the record reflects that the veteran has not been
afforded the one year period in which to submit the evidence
and information requested by the Board, and that he was not
properly notified of the time limit for the submission of
additional evidence and information.
Accordingly, the case is REMANDED to the RO for the
following:
1. The RO should issue another letter
providing the veteran with the
notice required under 38 U.S.C.A. §
5103(a) and informing him that the
requested information and evidence
must be received within one year of
the date of the RO's letter.
2. The RO should also undertake any
other development it determines is
required under 38 U.S.C.A. § 5102,
5103, 5103A (West 2002) and 38
C.F.R. § 3.159 (2002).
3. The RO should then consider all the
evidence and any additional
evidence, and readjudicate the issue
on appeal. If the benefits sought
on appeal are not granted to the
appellant's satisfaction, the
appellant and his representative
should be furnished a supplemental
statement of the case (SSOC), and
provided an appropriate opportunity
to respond before the claims folder
is returned to the Board for further
appellate consideration.
The appellant has the right to submit additional evidence and
argument on the matter or matters the Board has remanded to
the regional office. Kutscherousky v. West, 12 Vet. App. 369
(1999).
This claim must be afforded expeditious treatment by the RO.
The law requires that all claims that are remanded by the
Board of Veterans' Appeals or by the United States Court of
Appeals for Veterans Claims for additional development or
other appropriate action must be handled in an expeditious
manner. See The Veterans' Benefits Improvements Act of 1994,
Pub. L. No. 103-446, § 302, 108 Stat. 4645, 4658 (1994),
38 U.S.C.A. § 5101 (West 2002) (Historical and Statutory
Notes). In addition, VBA's Adjudication Procedure Manual,
M21-1, Part IV, directs the ROs to provide expeditious
handling of all cases that have been remanded by the Board
and the Court. See M21-1, Part IV, paras. 8.44-8.45 and
38.02-38.03.
_________________________________________________
J. E. Day
Veterans Law Judge, Board of Veterans' Appeals
Under 38 U.S.C.A. § 7252 (West 2002), only a decision of the
Board of Veterans' Appeals is appealable to the United States
Court of Appeals for Veterans Claims. This remand is in the
nature of a preliminary order and does not constitute a
decision of the Board on the merits of your appeal.
38 C.F.R. § 20.1100(b) (2002).